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Tuesday, April 24, 2012

Obama on Executive Power

In February 2011, President Barak
Obama directed the Justice Department to stop defending the Defense of Marriage
Act, which bars federal recognition of gay marriages, against constitutional
challenges. “Previously, the administration had urged lawmakers to repeal it,
but had defended their right to enact it. In the following months, the
administration increased efforts to curb greenhouse gas emissions through
environmental regulations, gave states waivers from federal mandates if they
agreed to education overhauls, and refocused deportation policy in a way that
in effect granted relief to some illegal immigrants brought to the country as
children. Each step substituted for a faltered legislative proposal.”

While not defying Congressional
statutes, the use of executive power to thwart defending a statute violates the
enforcement function of the executive branch. The other matters—enacting
environmental regulations, granting relief to some illegal immigrants, and
issuing state waivers presumably were under broader statutes that permit
administrative action by the executive branch. The danger, however, is that the
enforcement branch or arm could
become a legislative branch or arm of
the U.S. Government.

The irony is that Barak Obama had
criticized George W. Bush’s use of signing statements. The New York Times
points out that the institutional incentives of the presidency had come to
affect even Obama. This is an extremely significant point, for it suggests that
“elections have consequences” is buffered by the institutional trappings of the
particular office.

For example, as the E.U. was
struggling to manage the debt of some large states by pressing for austerity
budget cuts at the state level, it was feared that state office-holders would
be elected who had promised to leave the euro and reject the austerity. From
the example of Obama on executive power, we can say that such fear was
over-stated. A Euroskeptic once in office
is subject to pressure from other states as well as from E.U. officials. The
consequent backtracking is typically viewed as political fear. I contend that
it is merely a natural reaction to the incentives of a given office and
institutional placement (i.e., as a state in the E.U.).

Rather than being hypocrites, office-holders who said one thing on the
campaign trail but then modified their position once in office can be said to
be shifting from campaigning to governing—the latter being subject to the
institutional incentives of the office. The breadth of campaign proposals is
almost necessarily to be wider than the actual conduct of office-holders
because the “mandates” of an office have a converging effect because the office
itself does not change.

Obama could have campaigned as an
anti-executive candidate, but once he was sworn in he became an executive and thus had
to function as one. His anti-executive campaign promises would translate at best on the margins of his governing
decisions. Hence, “real change” on the
campaign trail is one thing, but change by office-holders is notoriously
incremental by nature of the continuance of the respective offices. In other
words, the status quo is the clear favorite where a government of offices has
already been established. For “real change,” governmental change must also be included, and that cannot come
from extant offices.

Generally speaking, what we take
as change—what we expect in this regard from our elected office-holders—is only
a very moderated sense of change. Put another way, we expect too much out of
existing offices. If we want “real change” in terms of policy, we must also
look at structural change of the
government.